Net Neutrality Nearer? Maybe

Some promising noises out of the FCC and Congress lately–even from President Obama– about preserving Net Neutrality. However, the Telco & other retrograde forces out there have lots of money, lobbyists, and influence. Free Press’s “Save the Internet” campaign has some good things going on, including an astonishing $100,000 matching contribution fundraiser sponsored by an anonymous donor. Chip in what you can. And contact your congresspeople today.

Update on Program Access — looks like FCC rolls lucky 7 at DC Cir. Casino.

Wall St. J. reports the court was fairly deferential to the FCC’s predictive judgment. That’s good. But it would be nice if the D.C. Circuit were less of a crap shoot. What makes the FCC’s “predictive judgment” better on program access and on inside wiring than on cable ownership or telco forbearance? Makes it rather Hell to do policy one way or the other.

Stay tuned….

Benchmarks and the Broadband Ecology.

As folks in broadband policy land know, thanks to the American Recovery and Reinvestment Act (ARRA), the FCC needs to present a National Broadband Plan to Congress by February 2010. The FCC has been holdng a bunch of workshops on various aspects of the plan as part of the inputs. I spoke last week at the Benchmarks Workshop. As I remarked to the sparse crowd, you can tell this is the deep uber-wonk stuff that only a handful of us find terribly interesting and vitally important while the rest of the world zones out and watches videos in their minds. For the short version, I include my latest “Five Minutes With Harold Feld.” Those more interested can watch the entire panel or read my written statement here. My more snarky comments (including my assessment of the panel) below.

More below . . .

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Comcast Channel Shifts — Looking for info.

I’m getting email about Comcast migrating MSNBC and CNN out of its expanded tier to a higher priced tier while keeping Fox News on expanded tier in a number of markets. If this is actually going on, I’m mightily curious.

Such shifts do not happen casually. They are generally the product of fairly intense negotiations among cable operators and programmers. They also require advance notice to viewers. This makes me extremely reluctant to impute a political motive here. If NBC and Time Warner (the owners of MSNBC and CNN respectively) were being screwed against their will over a political agenda, I would have expected to hear it in DC. What mainstream coverage there is of this suggests it is part of Comcast’s general digital upgrade. So we should expect to see all remaining channels migrated off to the higher priced tier eventually. While that will constitute a significant rate increase, it will put everyone back on equal footing. Besides, as the DC Circuit instructed us all last month, cable operators have no market power and cannot influence the programming market, whatever your personal experience to the contrary may be.

So if anyone has more info on this and would like to either comment below or talk to me, I’d love to hear about it.

I suppose I should add that unless Comcast failed to give proper notice to subscribers before changing their channel line up, their is nothing the FCC can do about it, so don’t bother complaining.

Stay tuned . . .

Canada Continues To Play With Itself For My Amusement — CRTC Allows New Tarrif for Metered/Capacity Limited Wholesale Services.

Back in December, I was very excited by the decision of the Canadian Radio-Telecommunications Commission (CRTC) to permit Bell Canada to throttle traffic for its wholesale customers. This represented the first OECD country taking a major step away from mandatory unbundling since the FCC deregulated our telcos in 2005. As a lover of empirical data, the thought of another country playing games with its critical infrastructure to test market absolutism struck me as a welcome relief from the U.S. always playing the guinea pig on free market absolutism.

And now, CRTC has gone further. In this Order, the CRTC approves an interim tariff for usage based billing (UBB) or, as we would call it here, metered billing with a capacity cap. I’m not sure if, reading this, it merely permits Bell Canada to offer a wholesale metered plan or if it allows Bell Canada to drop their unmetered plans and offer only metered plans. If the later, CRTC has pretty much delegated the entire industry structure over to Bell Canada. But even if this is just an option, it lets Bell Canada set the business model for how ISPs can do metered billing. So again, Bell Canada is going to have pretty tremendous influence on how the business model for DSL delivery evolves going forward.

Bell Canada had also asked for a fairly steep charge against an ISP if the ISP could not identify the specific customer using capacity, since that would evade the capacity cap. Happily for independent ISPs in Canada, the CRTC decided to hold off on that one for a bit.

As always, I shall be very interested to see what happens as a result. It’s always rare to see a similarly situated country willing to become a laboratory for experiments with its critical infrastructure. I look forward to seeing multi-year data on what happens to their broadband penetration, pricing, and overall use as a consequence.

Stay tuned . . . .

So What's Up With That FCC Investigating Apple and AT&T Blocking Google Voice — Oh Wait, They Aren't . . .

So while I was gone, Apple and/or AT&T turned down Google’s effort to get a Google Voice Application certified for the iPhone, so the FCC launched an investigation into the matter.

Except they didn’t. Not exactly. Which is extremely important on the delicate question of FCC authority. Actually, the FCC invited three companies involved in a very high-level spat on an issue pending before the FCC in two proceedings to provide them with useful information on how the market actually works.

I know, I know, this is all boring legal stuff that folks who care just about outcomes hate with a passion — or think is just cheap legal handwaving. But these things matter, both as a matter of law and and as a matter of policy. The fact is that the FCC is very carefully not exercising authority over anyone. The companies don’t even need to respond. However, if they fail to respond, they invite the FCC (and the rest of us) to assume the worst. Because allowing industry folks to foreclose needed agency action by simply refusing to provide necessary information is a crappy outcome we’ve lived with for the last 8 years (longer, really). Far smarter to invite industry folks to respond to questions, but decide that at some point you need to move with the information you have. Heck, if the FCC pulls that trick only once, I bet we’ll see lots more folks with relevant information willing to come forward.

So while I expect lots of folks to yammer about FCC authority on August 21 when the answers are due, they’ll be barking up the wrong tree. Won’t stop ’em, of course. But for those who would like a sense of what is actually going on from a legal/regulatory authority angle —

More below . . . . .

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Libby Beaty Memorial Fund

Last June, Libby Beaty, the Executive Director of the National Association of Telecommunications Officers and Advisers (NATOA) passed away. Libby was a tireless fighter for local government and the public interest, and someone I was pleased to regard as a friend and frequent ally at the FCC.

NATOA has now set up an education fund for her two children, Jonathan and Nicolas. To quote from the announcement:

Contributions to the fund can be mailed to the Libby Beaty Memorial Education Fund, c/o NATOA, 2121 Eisenhower Avenue, Suite 401, Alexandria, VA 22314. Checks should be made payable to the “Libby Beaty Memorial Education Fund” (please DO NOT make checks payable to NATOA) and we thank you for your support and donations, in remembrance of Libby and all that she embodied as NATOA’s Executive Director.

I hope that everyone who follows this field and wants to honor the memory of a worthy advocate for an important cause, will consider making a contribution.

Stay tuned . . .

Support Low Power Radio: Call Your Representative Today!

Low Power FM is a non-commercial service authorized by the FCC in 2000. the National Association of Broadcasters and, to its eternal shame, National Public Radio lobbied Congress immediately thereafter to kill this potential competitor. While not successful in killing the service, the incumbents did manage to get the “Radio Broadcasting Preservation Act of 2000” passed, which severely limited the number of available LPFM licenses. You can get some more background and links at this old blog post of mine.

Today, July 19, 2009, the Prometheus Radio Project is asking everyone who cares about encouraging local, non-commercial radio — as well as anyone who cares about greater opportunities for folks to use the electronic media, to take part in a day of action. Please call your Representative and ask him or her to support the Local Community Radio Act of 2009, which would repeal the RBPA and restore the original rules to LPFM. This would create hundreds of new opportunities for local communities to once again enjoy locally-produced non-commercial radio programming. giving a very different perspective on life, news, art, and entertainment.

Details here.

Stay tuned . . . .

Brief Update on Wireless Microphones: Where Mike Marcus and I Disagree

As Mike Marcus pointed out in the comments on my previous wireless microphone piece and on his blog, he and I disagree on the advisability of allowing prisons to jam cell phone communication.

Let me begin by saying that Mike has both tremendous engineering chops as well as a thorough understanding of the FCC and the politics therein. He worked there for some ungodly amount of time in the Office of Engineering and Technology, and was a critical force in pushing the 1989 rule changes to Part 15 that made the unlicensed revolution possible. His comments are not to be taken lightly here.

Where Mike and I disagree is not so much on the primary data but on how much weight to assign things. This is not uncommon in the messy world of policy, and is why even people generally aligned with one another can disagree strongly on important matters of policy (and why I hate the tendency for people to start calling each other nasty personal names over such disagreements). That’s why it’s important to see where and how we disagree.

In addition to his blog post, Mike also consulted for the state correction facilities on their Petition for Rulemaking (“Prison jamming Petition” or “PJP”). Read through that and his blog post and we come up with the following:

1) We both agree this is a hard engineering problem. Whereas I am more skeptical (based on the folks I’ve talked to) that this can be done in a way that is effective, affordable, and without interference, Mike thinks it is possible for some prison environments. I stress this last because, as the PJP points out, even the most optimistic projection for the current level of technology makes it doubtful this will work in detention facilities in high-density population areas.

2) Which brings us to major point of disagreement #2, how much will this really help and is the trade off worth the risk. Mike readily acknowledges that this is no “magic bullet” that would solve the security problems. The question is whether it does enough to be worth taking the risk of interference and the risk that jammers will proliferate. I think no, Mike thinks yes. Part of the reason I think this is a bad idea is because my experience with bright line rules tells me that where you have so many people interested in cell phone jamming it is inevitable that whatever protections are put in place will be whittled away over time. In addition, in a messy field like engineering, we disagree a lot about how easy/hard it would be to neutralize jamming, a critical question on the cost/benefit analysis.

3) Finally, we both agree that the wireless industry needs to step up to the plate and work with detention authorities to make solutions other than jamming affordable for for prisons, and that the FCC needs to address the problem of charges for prison calls made under proper supervision.

I expect Mike’s well reasoned and narrow disagreement will be manipulated by those who want to exploit this for their own profit (yes, I’m looking at you CellAntenna). That’s unfortunate. I hope that the wireless industry and correction facilities can work together to develop real solutions to the problem of contraband cell phone use before Congress pushes through legislation that would do more for CellAntenna’s bottom line than it would for prison security.

Stay tuned . . . .

D.C. Circuit Affirms Inside Wiring In Fairly Broad Opinion. Terrestrial Loophole Next? And What About Time Warner's TV Anywhere?

While folks in the suburbs sometimes forget this, a lot of people live in what we call “multiple dwelling units” (MDUs) — which is a fancy way to say things like apartment buildings and condos. One of the problems for people trying to switch from one provider to another for cable (for example, from Comcast to RCN) is that a cable operator may already have an exclusive deal with the landlord to provide cable services to everyone in the building. Competitors asked the FCC to ban such practices. In 2003, under Michael Powell, the FCC refused to ban such exclusive deals because “regulation is always bad, mmmmkayyy.” In 2007, as part of Kevin Martin’s attack on cable market power evil vendetta against the helpless cable industry, the FCC reversed this determination and found that under Section 628(b) of the Communications Act (47 U.S.C. 548) it needed to prohibit cable operators from entering into or enforcing such exclusive deals because Verizon can’t sell FIOS w/out being able to offer triple play. Predictably, this was widely denounced by the cable companies and their cheerleaders as not merely unwarranted, but a violation of law and certain to be overturned on appeal.

Turns out, not so much. In fact, in a rather broadly worded opinion, the D.C. Circuit affirmed the 2007 Order. Indeed, the language affirming the decision opens the door to the FCC tackling other cable issues, such as the terrestrial loophole (which Verizon wasted no time in pointing out to the FCC). Mind you, it remains unclear at this point whether the new FCC will have any interest in cable market power or not.

Still, there are a number of important aspects about this case, especially its implications for the FCC to regulate Time Warner’s TV Anywhere strategy, aka “how cable operators plan to preserve their existing business model and fight off Netflix.” I discuss this in more detail below . . . .

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